By Elad Hakim
Republicans in Congress must toughen up. They control the House and the Senate, yet they can’t get straight answers to specific questions from key witnesses in various ongoing investigations. While it is commendable that Republicans are “playing nice,” the law affords Congress several tools that it should utilize to punish those who fail to comply with congressional subpoenas, inadequately answer questions and/or try to hide behind certain privileges.
When Congress subpoenas someone to testify, that person must appear (absent a legitimate reason not to). A congressional subpoena does not provide someone with the choice of whether to appear or to ignore the subpoena. It is not a birthday or a bar mitzvah invitation. To the contrary, compliance is mandatory.
Failure to comply with a congressional subpoena can have serious consequences for the offender, including a finding of contempt.
Just as the Supreme Court has long recognized congressional subpoena power, so too has it upheld the enforcement power of contempt. If a witness refuses to comply with a subpoena to either produce documents or testify, Congress has a few options: inherent contempt authority, the criminal contempt statute, and various civil enforcement mechanisms.
While Congress has these powers at its disposal, it has not fully taken advantage of them. Just recently, Lisa Page, a key witness in the investigation of potential bias within the Justice Department, refused to comply with a properly issued congressional subpoena:
Page’s lawyer says she didn’t have enough time to prepare and had asked the House Judiciary and Oversight and Government Reform Committees to schedule another date. Because they would not, “Lisa is not going to appear for an interview at this time,” Amy Jeffress said in a statement Tuesday evening.
This excuse may be a delay tactic or the result of a technical glitch where the FBI failed to provide documents to Page for review the day before the scheduled interview. Notwithstanding, according to House Judiciary Chairman Robert Goodlatte, “Page has known for months that the panel has sought her testimony.”
In addition to Page’s refusal, Peter Strzok’s attorney recently indicated that his client may also not comply with a congressional subpoena, though he did testify Thursday before the a joint hearing of the House Oversight and Judiciary Committees. According to attorney Aitan Goelman:
“My client will testify soon, somewhere, sometime. We just got this subpoena today, so I don’t know whether or not we are going to be testifying next Tuesday in front of these two particular House subcommittees.”
Goelman, when asked by Cuomo why he did not respond with an “automatic yes,” replied, “Because we have come to the conclusion, forced to come to the conclusion, that this is not a search for truth, it is a chance for Republican members of the House to preen and posture before their most radical, conspiracy-minded constituents.”
“From our experience with the committee thus far, it is obvious that they don’t want the truth. They don’t want to hear what Pete has to say,” he added.
Congress cannot allow such blatant non-compliance to consistently occur. House Speaker Paul Ryan indicated that he is “willing to hold former FBI attorney Lisa Page in contempt of Congress if she continues defying a congressional subpoena to answer questions about anti-Donald Trump text message exchanges.”
“I am very disturbed by this,” Ryan told reporters at a news conference. “Congressional subpoenas for testimony are not optional. … She was a part of a mess that they have uncovered over at DOJ. She has an obligation to come testify.”
Ryan later added: “If she wants to come plead the Fifth, that’s her choice. But a subpoena to testify before Congress is not optional. It’s mandatory. She needs to comply.”
While Mr. Ryan’s “willingness” to hold Ms. Page in contempt “sounds” good, it is an all-too-familiar theme for the Republican-led Congress, which has failed to fully utilize the tools at its disposal to obtain the information it is entitled to. For example, the FBI and Justice Department have still not fully complied with a subpoena issued in August 2017. Isn’t it time to compel the production of this information and/or hold the relevant people in contempt? In addition, FBI counsel advised Mr. Strzok not to answer numerous questions during a closed door hearing last month. Isn’t it time to compel answers to discover the basis for the lawyer’s instruction, determine whether the instruction is justified and to compel him to answer, if necessary?
Congress need only look at what happened when some congressional members seriously threatened Rod Rosenstein with contempt (or possible impeachment). Once the pressure was properly exerted, he was more willing to comply with a previously and properly issued subpoena.
It is time for Congress to act more aggressively. Political affiliation aside, the laws must be enforced when people choose to disobey them. Recently, Congress has gone in circles like a dog chasing its own tail. This is unacceptable. If Ms. Page refuses to comply with a subpoena, Congress should hold her in contempt. If Mr. Strzok refuses to answer relevant questions, Congress must discover why and/or whether his refusal is justified. If relevant documents are not produced, they should be compelled. Nobody is above the law, and Congress should use the tools at its disposal to make this point loud and clear!
Elad Hakim is a writer and a practicing attorney. His articles have been published in WND, American Thinker, the Sun-Sentinel and other online publications.